Nagle v Rottnest Island Authority

[1992] HCATrans 301

..

' "I

• -,~JA

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Perth No P35 of 1991

B e t w e e n -

PAUL MAURICE NAGLE

Appellant

and

ROTTNEST ISLAND AUTHORITY

Respondent

MASON CJ
BRENNAN J
DEANE J
DAWSON J

GAUDRON J

TRANSCRIPT OF PROCEEDINGS

AT PERTH ON WEDNESDAY. 14 OCTOBER 1992. AT 10.18 AM

(Continued from 13/10/92)

Copyright in the High Court of Australia

Nagle(2) 17 14/10/92

MASON CJ: Yes, Mr Williams.

MR WILLIAMS:  Your Honours, yesterday I was dealing with the

judgment of Mr Justice Rowland and I read a passage

at 656 in volume four and there followed an

exchange in which my statement of the law was

called into question. For the purposes of this
case, in our submission, what appears to have been

an often cited passage in the judgment of

Your Honour Justice Deane in Jaensch v Coffey

appears to us to be all that we contend for. This

passage is, I would assume, well known to

Your Honours. It is at page 586 going over to 587

and in brief Your Honour Justice Deane has

summarized the nature of the duty and the

circumstances in which it arises and the nature of

breach, dealing with it in terms of positive duties, rather than omission, and making the

comment that omissions give rise to different

considerations.

That passage has been cited in Gala v Preston

in the joint judgments of Your Honour

the Chief Justice, Justice Deane, Justice Gaudron

and Justice McHugh. In the same case, Your Honour

Justice Brennan set out a five point summary of the
law and for the purposes of this case there is no
significant difference between that statement and
the principle set out in Jaensch v Coffey. I do
not suggest that there may not be differences in

other situations but in the context of this case I

submit - - -

BRENNAN J:  What is the principle in this case, Mr Williams?

MR WILLIAMS:  The question seems to be, arising out of the decision of the Full Court: was the risk of injury

to Nagle in diving as he did reasonably

foreseeable? That seems to be the principal issue.

Then, arising out of the judgment of the trial

judge, the question is: was the failure to take

appropriate steps causative of the injury? It is

simply two significant questions. The second has

been answered affirmatively for the appellant by

the judgment of the Full Court and the first has

been negated by a majority.

BRENNAN J: Foreseeability is relevant to what, the

existence of a duty?

MR WILLIAMS: That is the basis upon which the Full Court

seems to have held against the appellant.

BRENNAN J: But is that the basis on which you base your

case?

Nagle(2) 18 14/10/92

MR WILLIAMS:  In all other respects, we would submit that

the trial judge was correct. He found that there

was a reasonable foreseeability of a risk of injury of the type that occurred. He found that there was

a proximity of relationship. He found that there

was a failure to take reasonable steps that would

have prevented the injury, failure to take

appropriate steps consistent with a duty, but he

stopped short of the causation point.

BRENNAN J: What I am at a loss, presently, to understand is

this: granted that it was foreseeable and granted

that if some warning had been given it may have

prevented the injury, what distinguishes the

defendant in the action from any of the other

bathers on the beach?

MR WILLIAMS:  I am sorry, I am not sure I understand the

question.

BRENNAN J:  What gives rise to a duty of care on the part of

a defendant?

MR WILLIAMS:  In this case?

BRENNAN J:  Yes. Any bather on the beach could have

foreseen the same things, could have given the same
warning, but yet one does not say that the bathers

on the beach are negligent.

MR WILLIAMS:	No.
BRENNAN J:	Why does one say that the defendant is

negligent?

MR WILLIAMS: Because by its conduct the respondent had

undertaken a duty. It had undertaken that duty by

reason of the proximity of the relationship between

the respondent and Nagle and other bathers.

BRENNAN J:  Does the consideration of the problem of the

liability of public authorities in Schiller v

Mulgrave Shire Council throw any light on the

present case?

MR WILLIAMS:	I think, with respect, the law has moved on from Schiller in the sense that the basis upon
which a public authority can be liable for an
omission to take positive action has been
considered in considerable detail in the Heyman
case.  On the basis of that decision, there seemed
to be at least two possible bases upon which one might treat the respondent as owing a duty of care.

BRENNAN J: Then what are those bases?

Nagle(2) 19 14/10/92

MR WILLIAMS:	One is what was analysed by Justice McHugh in the case of Parramatta City Council v Lutz as being
the general reliance principle that is discerned by
His Honour and the judgment of Your Honour
the Chief Justice, Your Honour Justice Brennan and
Your Honour Justice Deane. The second arises out
of the judgment of Your Honour Justice Brennan in
which the principle seems to be that the conduct of
the respondent has increased the risk of injury and the increase of the risk of injury in this case is by the conduct of the Board in encouraging the use
of The Basin, in effect, as a family swimming pool.
BRENNAN J:	I see.
MR WILLIAMS:	There are two other possible bases that were

suggested by Justice McHugh in his judgment in

Lutz. One is that the respondent derives a benefit

from the activities of the bathers that it has

encouraged and the second is that the respondent
has what His Honour Justice McHugh referred to as

ceded control. There are four different principles

upon which it might be suggested that the

respondent in this case, the Board as it was, owed

a duty of care. In our submission, it is

sufficient if any one of those is established.

That which His Honour the trial judge relied upon

was the notion of general reliance as analysed by

Justice McHugh in Lutz.

MASON CJ:  Have you got a copy of the judgment in Lutz

there?

MR WILLIAMS:	Yes.
MASON CJ:	Thank you.

MR WILLIAMS: While I have only mentioned the judgment of

Justice McHugh, I should point out that the

President, Mr Justice Kirby, also undertook an

analysis of the judgments in Heyman and reached a

similar conclusion. The analyses are reasonably

extensive. In Justice Kirby's decision it

effectively starts on page 302 and reaches a

conclusion relevantly at page 306F where His Honour

said:

Despite the basic differences between the

reasoning of Mason, Brennan and Deane JJ

in ..... Heyman the element of reliance which is

both reasonable and foreseeable is to be found

in all three judgments.

Justice Mahoney did not deal with the question, but

Mr Justice McHugh, whose judgment starts at 320,

referred immediately to Heyman and then at 321

His Honour said:

Nagle(2) 20 14/10/92

However, there was a difference of

opinion among the judges as to the
circumstances in which a council comes under a

common law duty to take action to avoid harm

to a person when it has the power to prevent
that harm. In this appeal, it is necessary to
ascertain the basis upon which a statutory

authority may be liable in negligence when it

has failed to invoke a statutory power the

exercise of which would have prevented harm to

a person.

Well, again, his analysis of the judgment is quite

extensive. It effectively starts at the bottom of

page 326. He cites on 327C from the judgment of

Your Honour Justice Brennan:

Some broader foundation than mere

foreseeability must appear before a common law

duty to act arises. There must also be either

the undertaking of some task which leads

another to rely on its being performed, or the

ownership, occupation or use of land or

chattels to found the duty.

At 328B His Honour said:

Although the general rule of the common

law is that a person is under no duty to take

affirmative action to prevent harm to another,
the above cases and examples indicate that a
duty may exist where there is a reasonably

foreseeable risk of harm from conduct or

activities and a person has the right to

control that conduct or those activities or

has received a benefit from their existence.

In principle, there is much to be said for the

view that a public authority should be under a

duty to take affirmative action when the

control of conduct or activities has been

ceded to it by common understanding or when it

receives some benefit from the conduct or

activities.

He then cited from the majority judgments in

Heyman. At the bottom of page 329 His Honour said:

The concept of ceded control of a social

situation as the touchstone of liability for
public authorities was not mentioned in

Sutherland Shire Council v Heyman. Moreover,

it may be that the actual decision is

inconsistent with this concept. The Council

had taken upon itself control of building in

the Shire. Nevertheless, the concept of

general reliance as expounded by Mason Jin

his judgment is not far removed from the

Nagle(2) 21 14/10/92

concept of control. Both concepts depend upon

authority to control the harm-causing event

and a general consent to the exercise of that

authority for the benefit of individuals.	The
important distinction between them, however,
is that the general reliance concept depends

upon the existence of a statutory power while,
under the concept of actual or ceded control,

the existence of a statutory power goes more
to breach than to duty. Since the actual

decision in Sutherland Shire Council v Heyman

appears to be inconsistent with the notion of

control as the touchstone of a duty in a
public authority to take affirmative action, I

do not think that this Court can give effect

to it. That the decision in Sutherland Shire

Council v Heyman contains no single ratio does

not alter the situation.

He then went on to say that he thought the Court of

Appeal should adopt, as a general rule of the

common law, the concept of general reliance to

which Justice Mason refers in his judgment. At

letter E he said:

constitute the ratio decidendi of the case.

It is true that the reasons of Mason Jin

Indeed, they are in conflict with the reasons

for judgment of Brennan J and receive no

support from the judgments of Gibbs CJ and

Wilson J. It may also be true that the

passage in the judgment of Deane J (at 508) to

which I have referred endorses only the

concept of specific reliance and not that of

general reliance. But Sutherland Shire

Council v Heyman has no ratio decidendi which

covers this case. Moreover, the law relating

to the common law duties of public authorities

views in the ultimate appellate courts of	to take positive action to protect persons is undergoing change, is the subject of diverging	England, Canada and Australia, and is not the
subject of any authority binding on this Court in this case.

He said then:

this Court should adopt the general reliance

concept.

BRENNAN J:  How far does one take this? Take the most

remote beach on Rottnest Island - I assume there

must be one - does the same duty apply in respect

of each of the beaches there?

MR WILLIAMS:  No, it does not.

Nagle(2) 22 14/10/92

BRENNAN J:	Why not?
MR WILLIAMS:	In the evidence in this case, what has

happened is that The Basin has been singled out.

There are many beaches used for swimming on

Rottnest, there is no doubt about that, and

Thomson's Bay is promoted as a family swimming

area, but it is promoted as a family swimming area

because it is relatively calm, it has virtually no

reefs or anything like that in it; it is just an

ordinary flat beach. The Basin is promoted as a

swimming pool, it is promoted as a family swimming

pool, and in that sense, because of the appearance
of it and the way the wave platform or the ledge is

positioned around it, it creates the appearance of

a pool.

For most part of the circumference of the

ledge - if circumference is the correct term in the

case of an elliptical shape - it is relatively

simple to step from the ledge, or dive and jump or

whatever from the ledge, into the water; there are

no obstructions. It is only on part of the eastern

ledge where there are these obstructions, some of

which are visible, but others of which present a

hazard which is not readily discernible.

As exhibit 3 showed, there are, at least in three different places, rock faces of approximately

half a metre or more within diving distance of the

ledge. Those rocks get covered by sand or by weed.

Sometimes they are more visible than others.	The
sand in The Basin moves in and out.	Except when

the weather is rough, The Basin appears as a safe

place for swimming and the Board has constructed

steps, it has constructed shelter, it has

constructed change rooms, it has put up signs
saying, "Go to The Basin", it puts out brochures

saying, "This is the place for families to swim" .

On that basis, in our submission, it has

created an atmosphere in which the application of the principle of general reliance is appropriate.

There is even evidence in this case that offers

specific reliance by Nagle in his own evidence. At

page 27, line 20, he was asked to describe

The Basin, how it first appeared to him:

What would you see from the top?---Probably

the shape of the basin and the clarity of the

water and people swimming in it. I think that

would be the view of it, more or less.

The question then:

Nagle(2) 23 14/10/92

Can you tell His Honour - was there any reason

why you went to the basin?---It was the most

popular place on the island for swimming.

How did you know that?---Everyone was talking

about it on the island and there's a road down

to it and change rooms. The other places

haven't got change rooms or facilities for

getting to the beaches.	It was just by word
of mouth, I suppose.

That does not take it all the way, but it is a

start.

In relation to Your Honour Justice Brennan's

suggested principle that a public authority might
come under a duty of care where it has increased

the risk of injury, in this particular case there

are huge numbers of people who visit Rottnest. The

Basin is prominently featured as a place to go and

accordingly, large numbers of people go there

comparatively, but the fact that a large number of

people go there, many of whom would be unfamiliar

with The Basin or be inexperienced in swimming, in our submission does increase the risk of injury in

that sense.

In addition, there is evidence that Rottnest

was conducted by the Board and is conducted by the

Authority, in effect is a business. There is a

charge on all ferry tickets collected by the Board

on all persons who enter the island. The Board

provides the facilities on the island and leases
out all the commercial activities. While it is a

sole local government authority, it is more than a local government authority in a sense that it runs

the social structure on the island. The evidence

for that is referred to in the schedule to our

outline of submissions.

If I may go back now to Justice Rowland's

judgment and deal with the way he treated it.	On
page 659, volume four, dealing with the
foreseeability question, he said:

It is, of course, readily foreseeable

that anyone who was minded to dive into the

water from the reef edge on the eastern side
of the pool ran the risk of either hitting his

or her head on the bottom ..... or on the large

rocks which, except for one or two gaps,

continued just below the surface of the water

along that side of the pool. Mr Sullivan, who

had been general manager on the island for

some 19 years -

that is, at the time of the accident, 1977 -

Nagle(2) 24 14/10/92

had not personally experienced any diving

accident in the pool, nor had he heard of one
prior to his tenure as general manager. That,

of course, is not always the test; but, in my

view, it draws attention to the likelihood or

otherwise of the possibility of damage
actually occurring and being reasonably

foreseeable.

With respect, it is difficult to follow what

His Honour is there addressing, having instructed

himself, as I pointed out yesterday, on the

distinction between the statistical likelihood, on

the one hand, and reasonable foreseeability, on the

other.

One may well believe, therefore, that the

chance of this happening was very small. One

might say that the chance of someone diving
into the ocean at any place along the western

seaboard of this State, in the afternoon,

where there are known to be large rocks in the

vicinity, is also very small, with or without

a glitter effect. People usually do not, and

are not expected to, act in this way.	It is a
common enough experience that one can be

momentarily unsighted, or even misled, by a

glitter effect; but that does not mean that

one can foresee that a person is likely to

dive into a known rocky area.

Again, one might fairly ask, with respect, what question is being asked there. It is not

consistent with a separation of the probability of

something occurring and it being reasonably

foreseeable.

In my view, a proper consideration of the evidence would lead to the conclusion that the respondent does not owe a duty of care to the

class of persons of whom the appellant is one

to either warn them of the obvious danger of

diving from a ledge into the water at the

basin or -

another possibility not now relevant.

His Honour dealt also with the question of causation, briefly, at page 662. He said:

If, however, I am wrong in my views that

the respondent owed a duty to warn the

appellant, then I am, with respect, unable to

agree with the learned trial Judge's finding

that an appropriate warning sign which was

capable of being placed on the reef in the

vicinity of the eastern edge would not have

Nagle(2) 25 14/10/92

been sufficient to restrain the appellant from

diving.

So, we now have a unanimous view on the causation

question which was the only question on which the

appellant failed at the trial.

BRENNAN J:	How does one determine the causation question without some specificity relating to the warning
that should have been erected? If you say that
there is a general obligation to warn so as to
prevent the accident, the question of causation
answers itself. But if you say there was a breach
of a duty to warn in that something should have
been done, one can then approach the question as a
matter of fact whether, if that thing were done, it
would or would not have prevented the accident.

MR WILLIAMS: There were two possible forms of warning

considered in the judgments: one was - it was simply

termed "an appropriate warning of the dangers of

diving from the ledge".

BRENNAN J: Saying what and put up where?

MR WILLIAMS:	It would have been put up at - well, arrival at The Basin is usually down the steps. At a point
where most people would enter would be the
appropriate point and as close as possible to where the people would be going to enter the water.
Mr Justice Kennedy, in his judgment - I read the
passage yesterday - did go a little bit further and
suggested that it would be appropriate to warn of
the dangers of diving at any point along the
eastern ledge.
In the evidence, there was evidence from the supervisor of swimming pools of the City of Perth
as to a sign relating to the diving platform at
Beatty Park Swimming Pool. That was slightly
different. It instructed that there was to be no jumping from the diving platform, only diving was
allowed, and the evidence from the supervisor was
that that was generally observed by both adults and children.

There was evidence from the national

development officer of the Surf Lifesaving

Association of Australia, who indicated that the

use of signs at beaches, such as, "No swimming",

"Rip", or whatever, in writing, had generally been

effective but that the Surf Lifesaving Association

had adopted the standards of the Association of

Australia pictogram representations of warnings for

water safety. The relevant one appears at

volume three, at page 554. At the top of page 554:

Nagle(2) 26 14/10/92

Sheet No 213 Diving prohibited -

and that is part of a booklet published in 1985

by the Standards Association on Design and

Application of Water Safety Signs.

BRENNAN J:  I can understand that if the plaintiff had made

a case that there was a failure to erect the sign

No 213 and to indicate the area running from

point A along the eastern rim to point Bas

governed by that sign, it may have been open to the

trial judge to find, first, that it was negligent

not to erect it and, second, that if it had been

erected it would have prevented the accident

occurring. Was that question ever drawn to the

trial judge's attention or to the attention of the

Full Court?

MR WILLIAMS:  The issue was debated but it was not

particularized in the way that Your Honour is

putting it.

BRENNAN J: For my part, I am having difficulty in

understanding how one could approach the question
of breach of the duty of care or the question of

causation without specificity because otherwise one

says, "There is a duty of care which should have

been discharged in order to prevent the accident",

and that, really, is a proposition which bears no

relationship to any issue of fact.

MR WILLIAMS: There was debate at the trial about the

capacity of the Board to deal with activities

beyond the low-water mark and the Board took a

strict view that it had no powers of any sort which

the trial judge found against. I think it was

accepted at the trial and before the Full Court

that there was no problem with the Board putting a

sign at any point short of the low-water mark. The

danger that is presented is a danger of diving from

the ledge because of the presence of rocks or

because of the risk of hitting the bottom if the

diver underestimates the depth of the water.

As far as the particularity is concerned, in

our submission, it was perfectly open to the trial

judge to have considered, as was debated, a sign
warning of the dangers of diving from the ledge

being placed short of the low-water mark at a point

where it would attract maximum attention.

The debate did not go any further than that.

But the case did not founder at trial on that issue

at all. His Honour had no real difficulty with it

because he found that it was consistent with a duty

that there should have been an appropriate warning.

The only reason it failed at trial was because

Nagle(2) 27 14/10/92

His Honour took the view that the appellant knew

there were rocks there and, therefore, putting a

sign up would not have told him anything that he

did not already know. But that, with respect, is

as His Honour Justice Wallis and the other two

members of the Full Court found was not really the

question. It was not a question of whether he knew

there were rocks there; that there were some rocks
there was obvious. That was accepted. He saw

there were some rocks there. What he did

not know - there were rocks that he might not have

been able to see, and there were rocks within a

dangerous diving distance.

I ·just briefly mention now some of the

evidence dealing first with foreseeability of the

risk of injury. A document which is in the appeal

book volume one at page 20, is a notice of admitted

facts; it is entitled document 4 in this, but in

our submissions it is referred to as it was at

trial as exhibit 7. There is reference made to the

activities of the defendant, namely, its

construction of a path; erection of signs; erection

of change rooms and toilets; steps; a sign at The

Basin warning in some form of the danger of

undertow. The positioning of that sign may provide

some guidance also as to what is the appropriate

position for a sign warning of diving.

Reference is made in paragraph 2 to the existence of "publication". I will come to those,

and then as at the relevant date the Board had: (a) charged annual fees to members of the

public utilising moorings ..... and

(b) required such persons to comply with -

specification of the location regarding moorings;

"constructed jetties" and it carried out "blasting

operations" at various locations.

Now, at the time of the accident there was a

group of young men from a football club, and a

number of the witnesses who gave evidence as to the

accident were from that club. One of them is one

of the brothers, Vergone, J Vergone. At page 71

his evidence, about line 12:

You know the area known as "the basin"?---Yes.

Can you describe that for the benefit of

someone who has never seen it?---It's

basically like a large swimming pool. It's

pretty well enclosed.

Nagle(2) 14/10/92

Where is it situated? ..... What type of terrain

is it we are talking about?---Well, it's very

rocky. The basin itself is surrounded by

coral; what I would imagine to be coral;
shallow in parts and sort of deeper in other

parts.

Another footballer, football club associate,

Birmingham, at page 78 of the same volume, asked to

describe it at the top of the page:

You'd have to sort of describe it as an

opening in a reef, probably about 50 metres at

the longest point narrowing to, say, 10 or 12
metres. It is sort of oval shaped encrusted

by reef; very picturesque; a nice little site

really.

There happened to be just at the time of the

accident a practising general surgeon cycling by

with his family, that is Dr Ingram. At page 94 he

referred to The Basin, at line 35, as being "a

swimming hole at Rottnest". Asked to describe it,

he said:

The basin is almost a hole in the reef, about 15 metres across; a sandy bottom; rocky edge.

It's got a few rocks around the edge and the depth of water varies from a couple of feet at

the shallow end out to probably 6 or 8 feet at
the deep end; the sea end.

Sullivan, the Secretary of the Board for some 25 years, 19 at the time of the accident, in

volume two at page 228, was asked to recall the

first time he visited The Basin, line 20:

Yes, it was just after I'd - I got there on

the Saturday and met the staff and the

lessees.	I went around the island on the
Sunday in a truck and realised there were no

roads, and then on the Monday I had a look at

the basin and Parakeet -

that is an adjoining bay -

and seeing it was summer I had a swim in the

basin ..... your impression of the basin on that
first visit ..... I didn't know Rottnest but people, when I went, told me that it was a

lovely family place and I thought it was nice

and attractive and I couldn't get over the

crystal-clear water, you know, so I went there

often but I preferred Parakeet because there

were less people.

Nagle(2) 29 14/10/92

MASON CJ: Why do we need this evidence? Have you not got

sufficient in the way of findings at page 582, on

the part of the trial judge?

MR WILLIAMS: That is true, Your Honour, except that we have

got the majority of the Full Court against us on

the foreseeability question. The real issue I

suppose in relation to that is that both

Mr Justice Kennedy and Mr Justice Rowland said,

"Well, look, the fact that there are rocks there is so obvious that nobody is going to die", and really

that is the point we need to focus upon in relation

to foreseeability.

MASON CJ: Yes.

MR WILLIAMS: 

Now, at the same time, a partial answer to

that is not merely that the rocks are not all
visible, but that the people who go there will
include the inexperienced and the unfamiliar.

Perhaps that point is not in issue.

The photographs I referred to yesterday

indicate that the reef is, in effect, a natural

platform surrounding The Basin. I now provide

copies of the exhibit 13 which was missing

yesterday. I simply make again without referring

to that point, but if one looks at the photographs

and compares the appearance of the relevant area

along the eastern ledge in the 1985 and 1988

photographs in comparing that one, there are
significant differences in appearance.

Now, exhibit 3, the survey, demonstrates the existence of the rocks under water near the eastern

edge. The real danger arises out of it not being

readily apparent that there are these rock faces.

There was evidence at the trial from a university

lecturer in human movement, Mr B. Elliott, and his

evidence, page 327, is focusing on small points.

He was dealing with a study he had carried out

using very accomplished swimmers and the movement

that they undertook in diving, and showed a film to

the court. At about line 25, he said:

an average swimmer that was to just rotate

straight into the water, depending on his

height, would presumably move somewhere like

one and three quarter metres from the edge so

anyone that dives in any way or propels

themselves from the side of the pool - one

would assume that the hands would be impacting
the water somewhere between 2 and 2.5 metres

from the position where their feet would

leave.

Nagle(2) 30 14/10/92

The elite divers, he said, enter at about 3 metres.

Over the page, at the bottom of 328, he referred to

the study he had taken. The divers entered the

water and measurements were taken to see what their

velocity was as they continued through the water.

And he said that, out of his test group, line 40:

24 of them travelled 9 metres from the edge of

the pool to the point where their hands

touched a pad. At that point they were
travelling at velocity of 1/2 a metre per

second which one would basically assume was

very close to being stationary so one could

then assume that 9 metres would be certainly
the outer limit that one could travel under
the water without taking an extra stroke;

particularly if you are referring to an

average diver.

As an aide-memoire the trial judge was provided

with exhibit 3 with one metre markings on it.	I
hand up copies of that.

MASON CJ: 

Thank you.

MR WILLIAMS: 

Looking at rock 3, one can see that the rock

face which is at the northern, the top end of
rock 3, is approximately 3 metres from the edge if

one takes the measurement from where the

measurement plus 0.27 is taken.  So a person who is

an average diver diving in the direction of rock 3
would enter the water immediately before the rock

and would be travelling at close to maximum

velocity at the time they hit the rock face.
Similar sorts of comments can be made in respect of

rocks 5 and 6 at the top.

Now, there was evidence to which I will make

brief mention at the hearing in relation to the

effects of glitter, reflection and refraction.	The
witness who dealt with this was a Dr Penrose who is

an associate professor at the Curtin University of

Technology. His report is exhibit 19, which is in

volume three at page 483.	He had a copy of the
survey done by Mr Rodda.	What he refers to as

survey A is exhibit 3. He dealt with water depth

in paragraph 2.1 on page 482 to 483, referring to

the annual depletion and replenishment of the sand, and the variation in the sediment levels. And then

at 2.3 he dealt with refraction. He explained:

A consequence of the differing speed of light

in air and sea water is that the process of

refraction occurs for light rays crossing the

air-sea interface. This means that underwater

objects appear to an observer above the

surface to be closer and larger than if they

Nagle(2) 31 14/10/92

were in air. When viewed directly from above, a submerged object will appear to be closer by

a factor of 0.746.

The explanation for that is that light apparently

travels faster in the more solid water than in air,

so that the eye assumes that it is travelling at

the same speed in the air and the water, and the

impact is, therefore, that it appears closer.

However, the refraction also has another

effect which the witness explained by reference to

a diagram which is reproduced from a white board,

at page 497. If the viewer is observing at an

angle the effect of refraction is that the light

bends as it leaves the surface of the water. So a
person looking from the left of the page, that is,

the bottom looking at it sideways, would assume

that the object was closer, but the effect of being

at an angle is that it is repositioned and,

accordingly, appears further away. The distance

from the eye is shorter but the positioning moves

outward.

Now, Mr Justice Kennedy seemed particularly to

rely upon the fact that the effect of refraction is
to make the object closer. But he did not take
account of the point that was made in this

particular part of the diagram.	It is explained by
Penrose, page 173 volume one, at line 10.	He said:

the process of refraction ..... coupled with

this geometry has the effect of shifting the

apparent position of my object upwards and as

it happens because I have taken a non-straight

down diagram from my illustration, it shifts

it slightly outwards as well. The crucial

thing is it appears to be shallower.

Now, if one seeks to put that into context, it has	to be borne in mind what it is that one is looking	at, and in the case of something like rock 3, we
are observing something like photograph Von
page 432 in volume three. It has the added inconvenience, of the so-called glitter effect.

Now, the glitter effect is, I assume, readily

understood by the court, but it was explained again

by Dr Penrose by reference to diagrams which appear

at page 498. There is direct reflection of the

sunlight as shown in the top diagram, and then

there is also reflection off the sea bed which
confuses the picture somewhat. When there is a

rippled surface there is a reflection in a variety

of different angles which presents that mirror

effect.

Nagle(2) 32 14/10/92

The consequence for a person about to dive is

that when they look out if they are facing the

angle of the sun they have the glitter, a pool of

glitter in front of them at an angle determined by

the angle of the sun, but as they move that pool of

glitter moves with them. So that if you are moving

along that will move with you and if you are diving

out, if you are looking in the same direction you

will have this constant appearance of glitter in

front of you. That is a normal natural phenomenon

that people in an ordinary way of life are familiar

with, but has significant consequences for a person

who is about to dive.

There was evidence also that diving accidents

resulting in serious spinal injury are quite

common - - -

MASON CJ: That is obvious, is it not, and you have given

all the references to the evidence? There is no

need to take us through that.

MR WILLIAMS:  No. Can I mention also that there is

significant evidence which is also referred to from

Mr Atkinson the supervisor of pools, and

Mr McKenzie of the Surf Life Saving Association,

that signs are generally effective, and that is

also listed in the summary of submissions.

DEANE J: Without going into detail, what was the evidence

about whether when the water was level with the

diving or the wave ledge you would see that the

rocks had a raised face from the level of the floor

of The Basin? Do you follow the point I am making?

MR WILLIAMS:  Yes. The difficulty for the appellant in this

case is that there was no evidence available from

anybody except himself as to what the appearance

was on the day.

DEANE J:  I appreciate that, but, I mean, one knows that

looking in a swimming pool, for example, if there is something on the bottom, out it can look quite

flat until you get down to it. I was just

wondering whether there was any evidence about

that.

MR WILLIAMS:  No. Apart from the photographs, particularly

photograph Vin exhibit 6, there really was no

evidence. The evidence that was sought to be led,

at the first instance, in the Full Court was from a
person who did say that they saw what it was like

on the day but that was not allowed in. So,

effectively, there is no direct evidence.

Nagle(2)	33	14/10/92
DEANE J:	I should not have said "one knows".	The solicitor

need not think he has to tell me that I do not

know.

MR WILLIAMS:  Your Honours, I do not propose to refer to any

of the evidence on proximity.	The evidence is
listed in the submissions.	I think at this stage

there is no need to refer to it. They are our

submissions.

MASON CJ: Thank you, Mr Williams. Yes, Mr Solicitor.

MR PARKER:  If it please Your Honours, I pass up our

outline. If it please the Court, Your Honours will

be very familiar with the facility in human

experience with which it is possible to look back

after an injury has occurred and to see that there

might be some possible way that that could have

been avoided.

In our respectful submission, this is a case

in which that facility has had an exaggerated part

in the findings of the learned trial judge.

Without taking Your Honours back to them now, as my

learned friend has had Your Honours to them just a

moment ago, at page 584 the learned trial judge,

having for the two or three pages before that

canvassed the various contentions that were

advanced before him, at page 584 he expressed his

views as to what made the risk of injury here
foreseeable. There were three matters: the nature
of the ledge; the use of it by inexperienced

persons, and the effects of refraction or

reflection; no others.

If it please the Court, these factors alone,

having been considered, in our respectful

submission, have revealed a failure to appreciate

the very great significance of other matters,

including, and especially, the obvious presence of

the rocks and the nature of the risk they

presented, a factor we would have respectfully

submitted was paramount. It was not weighed at

all. It has failed to have regard to the absence

of previous incident or injury of this type from

this sort of activity, even though The Basin has

been used by inexperienced and experienced swimmers

of all ages and conditions for the major part of

this century, and used extremely extensively. And

it has exaggerated the effects of refraction and

reflection, failing to appreciate on the evidence

that with respect to reflection, firstly, that it

is a very common and every day experience with
which any of us are familiar when looking into or

across water with the sun in the line of sight;

that in that experience the instinctive capacity to

avoid its effects is virtually automatic; that its

Nagle(2) 14/10/92

effect, as my learned friend has been explaining to

Your Honours, is to perhaps here create an area of

reflection, a pool, within the total periphery of

the view; that by changing position, changing the

angle of sight by similar means that difficulty is
readily and instinctively, we would submit,

overcome; and that in respect of refraction, while

it may move the apparent position of an obstacle in

water such as the rock, it does so in particular by

making it appear as though it is higher in the

water. There is nothing in the evidence at all to

suggest that it would have the effect of causing

these rocks to appear flat or closer to the bed of

The Basin or less likely to present a vertical

obstacle.

The eastern ledge and the floor of The Basin,

and indeed the whole basin, is in its natural

condition. The Board has not altered them at all.

A feature of The Basin in all but abnormal weather

conditions is the clarity of the water and the

absence of any waves of moment. Apart from its

location adjacent to the original and main

settlement and its clear water, a major attraction
of The Basin provided by nature is the fact that it

is on the sheltered side of the island from the

prevailing weather.	Hence one has this clear and
calm water.

The presence of rock forming the edge of The

Basin and of substantial rocks in the water just

off the eastern edge, and of occasional rocks
elsewhere in the floor of The Basin are all, in our
respectful submission, extremely obvious. Without
wishing to delay too long in matters that are in
part repetitive, it is, in our submission,

important to appreciate from the photographs how obvious the rocks are even in these photographs.

And if Your Honours were to turn to volume three,

and especially at page 426, exhibit 6J, which is a

view taken without polarizing lens with a

completely overcast sky so that there is less

vision, one is looking out along the eastern ledge

as the appellant walked. He walked to somewhere

near the position where a person can be seen

standing.

There is a very dark patch of weed in the

foreground of the photograph and some other smaller

patches of weed which are particularly dark. On

the day in question there is no evidence of any

weed in the water. The appellant saw rock and sand

but not weed, and no one else has described weed.

In fact, the water is described as incredibly clear

on the day. Running in the water, even at this

distance, there can be seen, in our respectful

submission, clearly the presence of shapes in the

Nagle(2) 35 14/10/92

water and photograph K, which is taken from just a

little slightly around, gives the same vision and

effect.

On page 430, photograph R is much closer to

the scene. In that, in our respectful submission,
there can be clearly seen the objects in the water

adjacent to the reef. On page 432, photograph Vis

a photograph taken in approximately the position

found to have been the position from which the

appellant dived and taken in approximately the
position of his dive, the graphic obviousness of

the rocks and, with respect, not materially altered

or exaggerated by the fact that a polarizing lens

is used in respect of this photograph.

Photograph V, in our respectful submission, is most

graphic of the obviousness of the presence and the

bulk and the danger of those rocks in their

proximity to the eastern ledge.

The other set of photographs, page 449, that

which is marked A - of course, this is a distant

shot and an overhead shot, more overhead from a

height - but even there, there can be very clearly

seen the looming presence beneath the water just to

the right, about a third of the way in from the

right-hand edge of the photograph, the rocks.	Then
exhibit 14 E and Fon page 453, particularly E,

showing the presence and the proximity of the rocks

to the edge, and F again, a view around and raised.

In our submission, those, perhaps above all

else V, are eloquent in their confirmation of the

nature of the danger of these rocks.

If Your Honours would then turn to

page 448 - Your Honours have a larger print of

this, but I do not think you need trouble

yourselves getting that out - it is the survey plan

that was drawn. Could I just ask Your Honours to
notice the configuration of rocks 1, 2 and 3.	The

appellant was walking north close to the edge of

the ledge. He passed 1, 2 and came to 3.

Your Honours will notice, having regard to the

configuration of rocks 1, 2 and 3, that to somebody

walking northward along the edge they would appear
as virtually a continuous formation. There are
gaps but they are apparent from somebody who is

further out looking back. This is somebody walking

north from 1 to 3, and they appear as virtually a

continuous formation.

I would ask Your Honours then to note

especially the comment regarding 3 of the surveyor

on the right-hand side of page 448 starting at

about line 35. There are four comments: (a) at

the top of the rock, and I interpolate that that is

Nagle(2) 36 14/10/92

at about the centre of it as one can see from the
survey, it was at the time of the injury

0.22 metres, that is, some 9 inches below the

surface of the water; (b) rock 3 varies from

1 metre from the ledge at the nearest point on the

near side to about 2.5 metres from the ledge at the

furthest point; (c) the rock is of dark colour;

it is about 6 metres x 2 metres, and as

Your Honours will see from the depiction on the

side of rock 3 in the actual diagram, there is a

rock face shown as 0.5 metres high to the ledge.

So the most obvious bulk of the rock is of a

dimension some 6 metres x 2 metres x some half of a

metre, and of course, that half of a metre is at

the highest point much greater. It is virtually

0.78 metres high at its highest point. Comment

(d) the water surrounding the rock at the time of

this injury is between 0.7 and one metre deep as

surveyed.

DEANE J:	Mr Solicitor, what does that 0.5 metre high mean?
MR PARKER:	My understanding of it, if it please

Your Honour, and I do not know that much more can

be made of it than that; it is a matter of

interpreting that evidence, but it presents a face

of some half a metre high - - -

DEANE J: It is a bit hard to follow that because, you see,

the sand, the bit below it is -0.71, and just near

that the rock is said to be -0.70.

MR PARKER: That, if it please Your Honour, is at the very

southern tip of the rock where it falls right down
to the seabed, and the survey point seems to be

taken there. At least for the bulk of the rock it

would appear that there is a face of some half a

metre in height, and beyond that face the rock is

even higher toward the centre of rock. Clearly at

close to the bed of the sand itself. the very southern tip the rock tapers away to very In our respectful submission, that survey, if

taken in association with photograph V, reveals how

manifest was the presence and danger of this rock

being to within, at its highest point, some

9 inches of the surface, and refraction, if

anything, exaggerating that nearness. And it is

part of, for practical purposes, an apparently

continuous line of rocks in the sight of the

appellant as he walked north. In dealing with

reflection and refraction I should also point out

that the evidence of the appellant was that he was able to see those rocks as he walked north, and to the extent that his evidence would support the

possibility that reflection impeded his vision,

that would only be at the moment that he looked as

Nagle(2) 37 14/10/92

he dived. He turned and looked and dived, and it

would be at that moment only that there is scope

for reflection having the effect that has been

postulated by Dr Penrose as a possibility.

Now, often overshadowed in this case by the

forceful presence of the danger of the rocks off
the eastern ledge is another but equally apparent
danger from diving, and that is the depth of the
water. At the point where this dive occurred the

water is between 0.7 and one metre, and that is

about the deepest point in the inward part of the
inner Basin. It may, of course, have been a little

different, the bed of The Basin. There is movement

of sand ·and with that natural movement of sand

precise depths cannot be expected. But as much as

the evidence revealed, this is the sort of depth

that one would expect in that location.

From the survey to which Your Honours have

been looking at page 448, and also the other

depiction of it at page 447, the whole inner Basin

rim can be seen as shallow. It is, in fact, very

aptly described on both of those by the surveyor as

ttshallow, enclosed sandy basintt. Beyond rock 5,

much further out from where the appellant dived is

a deeper enclosed sandy basin.	The survey depth
show that it is significantly deeper.	It too is
substantially enclosed.	The bottom too is of clear
white sand.

Now, the clarity of the water, a feature of

The Basin, enables ready observance of the depth. People in the water, as Your Honours have already seen in photographs such as H, I, J, K, L, Mand V

itself, provide further means, if they are needed,

of confirming the depth. The appellant said he

looked across The Basin, saw people around and

throwing a ball - that is page 26, lines 10 to 15.

Initially he said at page 29, lines 30 to 35, that

he took the water to be as deep as the shoulders of

the bathers. But then, when cross-examined at

page 47, lines 18 to 28, he saw people ttup to their

neckstt, did not tttake sufficient noticett to see if

they were swimming:

I just glanced -

page 47, line 42.

DEANE J: It is very hard to follow the figures on

exhibit 3. I mean, if you look at rock 3 it shows

-0.58 adjacent to 0.5 metres high, which gives you 1.08 metres; and adjacent to that is the +0.25 of the ledge, which gives you 1.3 metres.

Nagle(2) 38 14/10/92

MR PARKER:  I am sorry, Your Honour, I did not catch your

starting point there.	I have been searching, but
have not picked it up.

DEANE J:  If you look in the middle of rock 3 it gives a

level near the edge of -0.58 metres.

MR PARKER:  Yes.

DEANE J: Well, when the water is level with the platform

that is -0.83 metres. You add to it the 0.5 metres

showing the height of the rock and you come to

1.33 metres which does not fit in terribly well

with the depth unless the rock is concave and the

1.58 is a little bit in and down from the edge

which, I suppose, is a possibility.

MR PARKER:  Yes, I appreciate the point Your Honour makes.

I do not know that I can assist considerably. That

is the evidence.

DEANE J: Yes.

BRENNAN J:	Mr Solicitor, if you were minded to enter the water from the eastern ledge, how would you get in?
MR PARKER:	If it please Your Honour, our primary submission

is that nobody would, except in the first parts of

it before the rock formation commences; or, unless

one goes right past the rock formation which goes

from rock 1 to 6.

BRENNAN J:  The top of the rocks, I gather, do not have the

same kind of surface for walking across as the wave

ledge has.

MR PARKER:  Not at all. I think that is pretty clear.

BRENNAN J:  Can you tell me whether or not people walk on

the wave ledge in bare feet?

MR PARKER:  Yes, yes.

BRENNAN J: There is one further question, the point which

is opposite rock 6, is there anything which

indicates the depth of the water there apart from

the -0.83?

MR PARKER:	No.
BRENNAN J:	Does it go, as it were, deeper out to the point

on -1.23 on the middle there?

MR PARKER:  The evidence, I do not believe, elaborates on

that, if it please Your Honour.

BRENNAN J: Indicates that, yes.

Nagle(2) 39 14/10/92

MR PARKER:  Except what can be drawn from that 448 and 447

which gives a slightly better overall view. One

can see that that area at the far north beyond

rock 6, is described as a deeper enclosed sandy

basin, and the survey data that is given is
generally of deeper water than in the shallow

enclosed sandy basin which is further to the south.

Your Honours, can see from 447 the general

topography of the rock formation on the eastern

edge, and can see how significant is its presence

in that vicinity, and that together with the size

and bulk of the rocks an the obviousness of their

colour and presence, as can be seen from the

photographs, in our respectful submission, leads to

the answer I put, Your Honour, that entry there is

just not the thing that is to be expected. There

is, as Your Honours can see, around the other

perimeters of the shallow enclosed sandy basin no

such pattern formation of naturally occurring

rocks.

Now, of course, the other matter which we

point to is the extensive use that The Basin has

had by all types of people for swimming for the

best part of this century. There is, despite that,

no evidence of any known previous similar accident
or incident to persons diving from the eastern

ledge, or for that matter of any other part of The

Basin. This has significance in two respects for

foreseeability. First, it serves factually, in our

submission, to confirm how obvious is the risk of

the rocks off the eastern ledge in all conditions
to all who use the area, such that no one else has

been injured by diving. Secondly, it is highly
material to the issue whether the conduct of the
appellant and his injury from it was reasonably

foreseeable.

Now, may I briefly remind Your Honours of the material parts of the evidence of the appellant,

and I will really recite it out of interests of

speed, noting in the transcript the page and line

unless Your Honours want me to go specifically to

it. But at page 26 lines 10 to 15, he said:

There were several people in the basin itself,

swimming around, throwing a ball.

Page 29 lines 10 to 20:

I was going along to find the deepest

part ..... ! looked in the water again to find

any dangers that may be there ..... to me

everything seemed to be safe.

Nagle(2) 40 14/10/92

Page 29 lines 30 to 35, he took the water to be as deep as the shoulders of bathers, water:

was glassy at the time; reflected - it was
whitish.

Page 29 lines 36 to 46:

After I sort of shoved off with my feet, I

entered the water and it was almost

immediate -

that he has hit his head.	Page 33 line 49 and on
to page 34:

You must remember that I jumped into the

water, looking at the depth of the water as I

jumped in.

Page 46 lines 10 to 11, at the beach I just dropped

my gear "and headed straight for the water", this

is cross-examination. Page 46 line 18:

I didn't see clarity until I actually looked

in the water to where to dive.

Page 47 lines 18 to 28 and 42, people up to neck,

did not take sufficient notice to see if they were

swimming, just glanced. Page 48 lines 43 to 45:

I walked along the water; above the water

along the reef; close to the water's edge.

Page 49 line 18, the edge was level with the water.
Page 49 line 23, "looking for a safe spot to go

in". Page 49 lines 35 to 38:

When I was walking out it was clear and when I

actually turned around to actually go into the

water, it was a glassy appearance then.

Page 50 lines 4 to 5, I had been able to see

clearly into the water before I turned to go in.

Page 50 line 10, "there were rocks around, too", as

well as plain sand that is. Page 50 lines 14 to

16, "am sure I did" on the question that was walked

past rocks that were shown to him in a photograph:

I was looking for a place for clarity, you

see, because I didn't dare to go past the

rocks.

In that context that seems to mean "I did not dare

enter the water past the rocks." Page 51 lines 37

to 40, "looks similar to me" to the "sort of

impression" I had on the day as I looked. That was

photograph X which Your Honours will recall there

Nagle(2) 41 14/10/92

was another photograph showing vividly the presence

of rocks, page 432.	Page 52 lines 5 to 22, the
essence of it being:

there were no rocks near me that I could see

and when the water looked clear to me, I

jumped off with my feet in a diving position.

That does not mean he jumped in feet first, but

that he kicked his feet back in a diving position.

He is asked whether:

the glassy appearance ..... as if the light was

reflecting off the surface ..... did it not

occur to you that three was a danger that you

couldn't see into the water -

because of that -

No, because I did look properly as far as rocks go ..... the rocks were very foreseeable,

you see. They're darker in the water. You

can see them.

Then, page 52 lines 21 to 22, when asked:

And you were quite satisfied there was nothing

there?---Naturally. I wouldn't go jumping in

on a rock deliberately.

In our respectful submission this, whatever else,

as to why the appellant dived as he did does reveal

that the appellant saw from his own observation

that rocks were there, and does reveal that he was

appreciative of the danger of diving over rocks,

and that he dived not because he had been misled

that the rocks were not so big as to present a

problem or the like, but because he believed there

were no rocks, that it was clear where he dived. Your Honours will appreciate from what I have	said, and I will just add that from the other
evidence at the trial, the appellant has not
demonstrated any position along the relevant part
of the eastern edge from which large rocks in the
water are not obvious. Nor does the evidence show
that others were then or at any other time had used
the relevant part of the eastern ledge for diving. In our respectful submission, had His Honour
properly evaluated the facts relevant to foreseeability, the presence of the rocks and the
obviousness of the danger which they presented to
any observer would have been a most material
factor. In our respectful submission, it is
difficult to imagine a more obvious danger for somebody contemplating diving as their first entry

Nagle(2) 42 14/10/92

into strange naturally occurring water. It is

demonstrated on the evidence that the appellant and

anybody else who did as he did would have seen

virtually the continuous body of rock in the water

off the ledge.

Now, precisely how, or why I should say, the appellant came to dive, is not really

satisfactorily explained. He has no explanation.

On his evidence there would not have been any rock

where he dived. However, his evidence, with that

of Dr Penrose, is capable of supporting the view

that he experienced at the moment he turned and

looked just before diving the effects of sunlight

reflection. That could, on the evidence of

Dr Penrose, have made it difficult to see the rocks

beneath the water in part of his field of vision.

It is not that it would obliterate vision or that

it would exclude vision entirely, but it would make

it more difficult seeing the rocks. If one stood

with the head in one position looking in one

direction there would have been, on the possibility

that Dr Penrose advances, some impairment or some

difficulty in seeing rocks in part of the field of

vision.

He would have been able to see rocks, nevertheless, especially with movement of his head,

and I have already mentioned that refraction, the

other possibility canvassed by Dr Penrose among
other things, enhances, not diminishes, the

appearance of the danger.

For those reasons briefly canvassed it is our

respectful submission that His Honour the learned

trial judge did not adequately direct himself as to

the facts of this case. I would mention that at

page 584, at least as reproduced in the appeal

book, there would, on the face of it, appear to be	a misdirection of law, but I really doubt that it
to be a "not" missing. He says:

was the case. At page 584 line 22, there appears

it will be a real risk if it is unlikely to

occur or is only a possibility or may be

described as remote.

If I took that literally I might be able to sit

down on this point but I fancy there may simply

have been a "not" omitted.

In our respectful submission, the possibility

that someone would dive, as the appellant did, and

so sustain injury should be seen to be so remote as

to not be foreseeable as a real risk and in

particular emphasis of that is the very significant

Nagle(2) 14/10/92

effect of the actual use of this place without like

incident for so long.

That, in our submission, leads, of course, to

the view that there was no relevant duty of care

owed by the respondent to the appellant in respect

to the rocks off the eastern ledge of The Basin.

We have merely mentioned two alternative views that

have been taken by members of the Court as to the

precise legal relevance of that by giving two

convenient references to Jaensch v Coffey where

those differing views are expressed. But whichever

approach one prefers, in our respectful submission,

an essential question that must be answered is

foreseeability, and here that should be answered

against the appellant.

We turn then to duty of care dealing, firstly,

with the facts. If contrary to the above

submissions there was a foreseeable risk of injury,

and assuming the existence of the duty in all the

circumstances, the question adverted to by Justice

Brennan, the question arises what, having regard to

the relevant factors, a reasonable man would do by

way of response to the foreseeable risk.

Now what is asserted by the appellant in this

case is that the respondent had a duty to warn the

appellant adequately that diving from the eastern

ledge was dangerous due to the presence of rocks in

the water, and that seems to be a development of

but raising the same issues as the original

allegation in the statement of claim. It is to

warn the appellant adequately that diving from the

eastern ledge was dangerous due to the presence of

rocks in the water.

In our submission the evidence does not

support a conclusion that a reasonable man would

have foreseen the need for, or the value of, a

warning of the danger of diving because of rocks in

the form that is put against us given, in

particular, the obvious danger of the rocks, the

natural topography which allows anybody approaching

The Basin to have a good and adequate view, both

from on high and then, as the photographs show,

from an ordinary walking position, the clarity of

the water, so we have not got a murky bottom or the

like which hides from a viewer the presence of the

rocks, and of course the absence of previous

incident. Given those matters in particular, a

reasonable man, in our submission, would not expect
that the appellant, or anyone, would not be aware
of the danger and would, therefore, dive as the

appellant did.

Nagle(2) 44 14/10/92

DAWSON J: That is going back to the first point: assuming

a duty of care which you do for this purpose, what

would a reasonable man do in discharge of that

duty?

MR PARKER:  Yes.

DAWSON J: Well, what would he do?

MR PARKER:  Our respect submissions are that he would

certainly not see the need to give a warning

DAWSON J: Perhaps, but would you say he would have to do.

MR PARKER: One must start, of course, by asking, "What is it that one apprehends to be the danger, and what

then does one apprehend as a proper solution to

it?".

BRENNAN J: But your logical fallacy is, if there is a duty

of care. If there was a duty of care nothing was

done, ergo, it was not discharged. You then

grapple with the problem of whether there is a

duty of care, do you not?

DAWSON J:  You have done that. Now I am making an

assumption there was.

MR PARKER:  It is the possibility of the way that it might

be seen that there was foreseeability of injury. Now, if one comes to the point, perhaps, that it

was foreseeable that somebody would be so unmindful

of his own well-being as to dive despite knowing

the rocks were there, one could come to one

question of what does the duty of care require. If

one comes to another possible view, as contended by

my learned friend, that this man dived because of

the effects of light reflection, and that is

something that should have been foreseen, then

perhaps some other duty would arise.

What we are seeking to point out in this

submission, is that what is here pleaded, is a duty

to warn of the danger of rocks. It is not a duty

to prevent diving, that is a quite different duty.

The standard warning sign urged upon Your Honours,

is a sign that prevents diving. This is a duty to

warn of a danger of rocks. None of the signs in

that exhibit which is one that came into existence

some eight years after the accident, contains any sign for warning of the danger of rocks. So that

at best, one might postulate, from the way this is

pleaded, both originally and on this appeal, that

it is suggested that there should have been a sign

warning "dangerous rocks off eastern ledge", or

something of that nature. That is trying to add

its particularity that is absent from the - - -

Nagle(2) 14/10/92

DAWSON J: Yet you, as I understand your case, say no one in

their right mind would dive off this point.

MR PARKER:  Yes, that is our primary submission and our

earlier point.

DAWSON J: But does it follow from that that diving there

should be prohibited? But you say, "Well that is

not suggested. ".

MR PARKER:  I think though, there is some value in this

submission, depending on possible views taken of

foreseeability and how it might particularly arise.

We ask: what is it that a warning of the type

pleaded would add to the knowledge of a person in

the position of the appellant about the danger of

rocks off the eastern ledge? It is not - so many

things in the case that have to be answered; in

particular it is not a warning that where this

appellant dived there is a big rock here. That, on

the evidence of what the appellant did, would

perhaps have been the only thing that might have

stopped him from what he did. A particular warning

on a particular rock, and even then, on his

evidence, there is room to question that that would

have affected him.	Of course that is anticipating
causation.

It is not the case of a hidden trap. For

example, in this Basin, in northerly weather
conditions, there can be an undertow. Something

that is not apparent by the merest observation. In

respect of that, there is a warning to people who

come, but that is because the danger is one that is

hidden.

DAWSON J:  What should we do if we came to the conclusion

that in the discharge of the duty which you are now

assuming the authority should have prohibited

diving along this point, or the point where the

appellant dived?

MR PARKER: It is not a conclusion - - -

DAWSON J: It is not open.

MR PARKER:  - - - raised by the appeal, if it please, Your

Honours, and certainly not a basis upon which it

has ever been contended that the respondent should

be liable. There has not been, for example, any

exploration of the evidence of what a prohibition

of that type might have had as an effect.

DAWSON J:  You see the trial judge went on to consider the

"but for" point and said it would not have

stopped - the sort of notice which is being

Nagle(2) 46 14/10/92

suggested would not have stopped the appellant from

diving but a notice prohibiting diving may well

have.

MR PARKER:  It may have stopped people who were mindful of

their well-being, if it please Your Honour.

Whether it would stop the conduct which occurred

here, is - - -

DAWSON J: But it would preclude the argument that it would

not have stopped the appellant diving because he

did not know there was rocks there. It is

increasing it.

MR PARKER: 

One would say it would have been a useful

insurance policy in resisting an action such as
this by the Authority but, in our respectful

submission, one must look at the nature of the risk

to see whether it really does require in the

foreseeable usage of this area that there be a

warning. There are warnings that are obvious that

do not require some artificial attention being

drawn to them. In our respectful submission, this

is of that category.

DEANE J: 

What about a sign that said "Diving from anywhere

in this area is dangerous" and, if you did not mind

the length of the sign, "because when the water is

level with what looks like a diving ledge,

refraction may conceal that you are diving straight

into a rock."? We are assuming you have lost on

the duty of care and we have come to the sign.

MR PARKER:  And you are assuming I have lost on the basis of

refraction. I think Your Honour may have been

contemplating particularly a reflection rather than

a refraction.

DEANE J: Yes.

MR PARKER: For a start, we would have respectfully have

submitted that such a sign is likely to be seen as

substantially useless, for the very fact that it is

a big and lengthy sign.	Who is going to take
notice of that?

DEANE J: Well, my sign was really, "Diving from anywhere in

this area is dangerous". And let us say, slap

opposite rock 3 because that is about the middle of

the area where diving is dangerous.

MR PARKER:  Of course, Your Honour is going a long way from

the case that we have to answer in postulating that

as the sort of warning that should be given. We

would also point out that when one is considering
whether it is reasonable to warn in this way, in

respect of such an obvious risk, that there are

Nagle(2) 47 14/10/92

inherent problems with that because there is more

than one risk to diving and to draw attention to

one risk has a strong inclination to diminish

attention of people to the other, that is, the

depth of the water.

So that, people on arriving at The Basin and

seeing this sign, perhaps at the beginning of the

eastern ledge, saying, "Diving here - dangerous
rocks", might by that very fact, be encouraged to

dive in the area where no rocks were obvious. In

assessing, in our respectful submission, what is a

reasonable response to this postulated risk,

without unfortunately having been able to postulate

precisely what it is, it is wrong and potentially

leading to a wrong result to take the very

particular isolated facts of this, in our

submission, remarkable and singular accident, and

from them to say, "Well, how could we have stopped

this? What about a sign?" One is losing

perspective, in our respectful submission, of the

right issue, of what is a reasonable response - - -

DEANE J: But, Mr Solicitor, is that really so? I mean, if

you could look at this big map which is the second

of the maps. You go along and you see what most

young people would see as a natural diving

platform, were it not for the rocks, and you then see that when, as at the relevant time, the water

is level with the diving platform, forgetting the

+0.08, the top of the rocks varies up to more than

half a metre below the surface of water. I would

have thought it was apparent that some people

wanting to do a shallow dive, as this appellant

said he did, would not properly judge the depth of

the rocks below the water and would try and dive.

Now, I appreciate you saying that he looked

and he says he did not see any rock, but that is

the next step. The first step is if you have what

looks like a diving platform and out of the area

where if you do a flat dive there are rocks that	are going to be half a metre below the surface, I
would have thought it was obvious that someone
without experience of the depth of things below the surface of the water, particularly very clear water, could think that he could safely dive over
them.

MR PARKER: In our respectful submission, our experience

differs. For a start, this ledge which Your Honour

describes as a natural diving platform is the full

periphery of The Basin, so that if there is

substance in the view that it offers an invitation

to dive, it offers it throughout The Basin. What

is different about this position is that instead of

it being an invitation to dive into clear water,

leaving aside shallowness, there is there obviously

Nagle(2) 48 14/10/92

a substantial rock configuration. Refraction has

the effect of making that seem more prominent than

it might have been, hence, in our submission, it is

not to be foreseen that people throwing caution to

the winds and regardless of their own safety, would

use that area to enter The Basin.

It would be an action which, in our submission, would be beyond expectation when there

was such alternative possibilities of entering the
water available, and when, by the briefest of

observation, those difficulties are apparent at the

eastern edge. And as much as one can make of it by

deduction from the conduct of this appellant, he

did not think that he might dive because the rocks

were too shallow to be a problem. He dived, on the

only possibility of the explanation that is

offered, because he thought there were no rocks

were he was diving, he thought he had found a clear

spot, and if the experience of other users is

weighed, either there have been a very large number

of miracles, if it please Your Honour, or the

factual events that you postulate have not

occurred, and we would respectively advance the

latter.

This is such an obvious problem area confined

to one locality when there are no problems

elsewhere.

DEANE J: But I am right, am I not, looking at this map,

that there is only one spot where these rocks would

not be half a metre below the surface of the water

marked on this chart. That is the +0.08, but all

the other markings indicate half a metre or more

than half a metre.

MR PARKER:  The differential is 0.3 metres, if it please,

Your Honour.	I think if that is taken into account
you get a number of places where there is less than

half a metre of water.

DEANE J: It is not on this map, but it is no doubt on

another of the charts?

MR PARKER:  I was looking at 448. There are positions on

rocks 1, 2 and 3 which clearly are in less than

half a metre of water.

DEANE J: Yes, I see that.

MR PARKER:  I do not have the advantage of the big plans

Your Honours have, so I am afraid I cannot

communicate in exactly the same language.

Nagle(2) 49 14/10/92

DEANE J: Apart from the +0.8 it would vary from, on these

markings, a third of a metre or thereabouts to more

than half a metre.

MR PARKER:  Yes, I think that is right, if it please

Your Honour.

The effect of these submissions, if it please

Your Honours, was that it is really giving an

enormous significance to particular isolated and,

in our submission, remarkable conduct that occurred

here to say from that that there was a need in as

reasonable response to the risk here to erect a
sign warning of this danger and Your Honours

appreciate with me very well that one slides

between foreseeability and the duty of care in that

depending, in particular, upon what basis it might

be postulated if there was foreseeability.

BRENNAN J:  Mr Solicitor, could you tell me what the

variation in tide levels is at Rottnest?

MR PARKER:  About 0.75 metres, if it please Your Honour. I

am relying on page 490, exhibit 18, which is a

diagram showing the relationship of Fremantle and

Rottnest tides. Sorry, it is much less than that,

if it please, Your Honour. That is the maximum

tide, about 0.75 metres but the lowest tide is

roughly about 0.4 metres, so there is not a great

tidal movement at all. I point out that this

exhibit may not answer Your Honour's question for

the whole of the year. It is showing tidal

movements over a period of days.

BRENNAN J: Perhaps I could ask the question this way: is

there some time when the wave ledge, as a whole,

is covered by the tide and when a glitter effect

from the east, for example, might preclude those

who are entering from the west from seeing that

there is only a few inches of water over the wave

ledge?

MR PARKER:  I do not think the evidence will allow me to

answer, Your Honour. Certainly, at times the wave

ledge is covered with water, not to great depth.

BRENNAN J:	No.
MR PARKER:	The aspect is to the north east, the headland is

to the east, so that the sun in that configuration

would not be a normal - - -

BRENNAN J: Well, it depends whereabouts you were standing

on the - - -

MR PARKER:  Yes, it is a very loose deduction. The evidence

does not grapple with that issue.

Nagle(2) 50 14/10/92

I turn, if it please Your Honours, to

causation. Even if the respondent.owed a relevant

duty of care which was breached, it is submitted

that it has not been shown that the failure to warn

of the danger of diving from the eastern ledge

because of rocks - and that is what is put against

the respondent - caused the appellant's injuries.

The evidence establishes the appellant was

very well aware of the presence of rocks and of the

danger they presented to a diver. His whole

evidence was how he went about trying to find a
place where there would not be that danger, and his

eloquent last statement that I gave to

Your Honours, that he would not have voluntarily

launched himself over rocks. In our submission,on

the facts, the warning that is pleaded would not

have altered the appellant's apprehension of the

danger of rocks. It was because of his awareness

of that danger that he searched for a safe place to

dive. He did not act, in any way, on any reliance

that it was safe for him to dive in this location.

He did not just walk to the edge and dive because

this was a swimming spot. He searched for a place

where the danger that he had apprehended did not

exist, and his own evidence is eloquent to

demonstrate that he dived for the very reason that

he thought he had found a safe spot.

He did not form that view as a consequence of the failure of the defendant to warn, as alleged.

He formed that view because of his own, either

limited or faulty, or impaired observation. In our

respectful submission, this is a case where the

performance of the duty to warn, which is put

against us, would not have averted the injury which
the appellant suffered. In this respect, the
learned trial judge was correct in his conclusion

that causation was not established on the evidence.

They are the submissions that we would put

before the Court, if it please Your Honours.

MASON CJ: Thank you Mr Solicitor. Yes, Mr Williams.

MR WILLIAMS:  Your Honour, my learned friend has, in his

initial submission, highlighted the manifest

visibility of the rocks by reference to the

photographs. He has drawn attention to the survey

which indicates that rock 3 is dark colour, as

distinct from a sandy colour or pale in other

rocks.

Now, in our respectful submission, that

submission fails to take account of the changing

conditions in The Basin. They can be readily

observed by comparing photograph E in exhibit 6

Nagle(2) 51 14/10/92

with photograph marked A exhibit 14, that is at

page 423 of volume three and page 449.

The 1985 photographs were taken at a time

there was obviously a lot of weed in The Basin,

including right at the foot of The Basin.

Photographs in 1988 show that there appears to be a

lot more sand over the very places that we are

concerned with. It is not appropriate, in our

submission, to look at a photograph taken at a time

other than at the time of the accident, and surmise

from that what the appearance must have been.

Equally, in referring to photograph V,

page 432, it is not appropriate to assume that the

colour of the rock below the water was that colour

at that time.	The evidence just does not establish
what it was.	The evidence does establish that the

appellant observed rocks. It does not establish

what was the colour or what was there that he did

not actually see.

Can I just make one comment in relation to exhibit 3, the consequence of the questions raised

by Your Honour Justice Deane. The markings on

rock 3 are either wholly or partly within the

serrated edge of the rock.	We assume that it is a
net measurement of the depth of the rock.	So that

where you have in the middle, +0.08 and then

immediately below that -0.58, it means that there

is a drop of 1/2 metre in that short space.

Now, the feature to which we would seek to

draw attention is that there is this height, +0.08

in the middle, but also at the northern end there
is -0.08 which is a drop of only 16 centimetres

across half of ..... Whereas there is a drop of

1/2 metre within a short space there is, what

appears to be a reasonable continuity and that

provides some evidence of the existence of this
1/2 metre rock face.	It may be that the rock face

continues down on the eastern side but is not 1/2

metre on the right - I am sorry, it is not

1/2 metre on the left or the west. What the

figures suggest is that the bottom half of the rock

is at a lower level so that you have in effect, a

pinnacle at the northern end dropping away to -0.07

at the bottom. Within The Basin bed between the

rock and the ledge it is -0.067 opposite the place

where the face appears to be, so that the sand is

in the middle at a somewhat lower level.

Now, Your Honour Justice Deane asked what was

the rise and fall of the tide at Rottnest. There

is another exhibit; it may not be much more

assistance but has not been mentioned. At page 396

in volume two there is a Fremantle tide chart. The

Nagle(2) 52 14/10/92

evidence of Mr Wallace is that, effectively, the

tides at Fremantle are reflected at Rottnest.

There is such little difference that it is not

worth worrying about. What this indicates is that

between 11th and 20th the high point was at nearly

three feet - this is a table in feet - and the low
point was not long before, or around about the time

of the accident or at the equivalent time the day

before, at about 0.07 of a foot. The feet are

divided in 10 units. So that the range is about

2.3 feet in that relevant time, which is quite a

movement. The fact that the tide does move up

quite significantly can, in fact, be seen from the

comparison of the 1985 and the 1988 photographs.

My learned friend suggested that there was a

"not" missing at page 584 in the judgment of

His Honour Mr Justice Nicholson, where he talks

about the test of foreseeability. In fact, in our
submission, if one turns to the passage in the

judgment of Your Honour the Chief Justice in Wyong

v Shirt, there is not a "not" missing, in our

submission. If it is to make any sense one would

say that it will be a real risk even if it is

unlikely to occur, rather than insert a "not".

BRENNAN J:  Mr Williams, would it be possible to extract

from the transcript the references to any evidence

that was given with respect to the terms and the

location of any suggested sign?

MR WILLIAMS:  It is certainly possible, Your Honour. I

suspect most of the relevant debate, in fact, went

on in submissions rather than in the evidence.

BRENNAN J:	I see.
DAWSON J:	What do you say, Mr Williams, to the submission

that your case was limited to the suggestion that a

sign warning of the existence of the rocks was

necessary, as opposed to a sign prohibiting diving

at that point or at any point in - - -

MR WILLIAMS: In our submission, a sign warning of the

dangers of diving would have been adequate in the

particular circumstances, because it is appropriate

to draw a distinction between knowledge that there

are rocks in the water and the additional knowledge
that those rocks are dangerous to anybody

contemplating diving, because it highlights the

fact that not only are there rocks there that are

visible but - - -

DAWSON J: But it is said against you. All you have said

was needed was a sign warning of the presence of

rocks and you are confined to that in your case.

Nagle(2) 53 14/10/92

MR WILLIAMS: In our submission, the alternative of a sign

prohibiting diving is likely to be more effective.

DAWSON J: But is that available to you on the way in which

you pleaded your case? That is what I am asking

you.

MR WILLIAMS: In our submission, yes, because it is

consistent with the particular C which I read out,
that a sign which actually prohibits diving would

be effective for the purpose particularized.

BRENNAN J: Could you provide us with any details of any

transcript references, whether in evidence or in

submission, with reference to the suggested terms

and location of the sign?

MR WILLIAMS:  Yes, that could be done, Your Honour. They

are our submissions in reply.

MASON J: Yes, thank you, Mr Williams. Yes, Mr Solicitor.

MR PARKER:  May I correct one statement of mine which, to

save Your Honours' time and out of respect for

Mr Justice Nicholson. At page 584 I suggested

there was a "not" missing.. It is not that there is

a "not" missing. It is that "will" should be

"may". His Honour has put it that a real risk -

his words used:

but it will be a real risk if it is unlikely

to occur or is only a possibility or may be

described as remote.

That proposition could only be correct if "will"

was "may".

MASON CJ: The Court will consider its decision in this

matter.

AT 12.42 PM THE MATTER WAS ADJOURNED SINE DIE

Nagle(2) 54 14/10/92